I’m one of the chorus of commentators who views current defamation law as indefensible, hoping the Supreme Court will revisit Sullivan. Professor John McGinnis’s provocative challenge to originalists to refocus their efforts to 1868 intrigues me. I’ve analyzed the impact of two state constitutional provisions—imposing responsibility-for-“abuse” of free speech-press and open-court provisions providing a remedy for defamation-impairing reputation or character—in discussing the states’ responses to the Court’s federalism-infused 1974 counter-revolution in Gertz v. Robert Welch, Inc., which authorized states to adopt a simple-negligence standard for actual damages in private-person-public-concern cases. Professor McGinnis’s excellent essay prompted me to reexamine these provisions in detail, as part of the originalism debate facilitated by Carson Holloway in this forum.

　　What I found is quite revealing. Using Colorado’s 1876 Constitution as my breakpoint, I found that 30 of 38 then-existing state constitutions incorporated open-court protection of reputation or character or the functional equivalent thereof. This trend continued as more states were admitted to the Union. An even higher percentage—34 of 38—adopted the liability-for-“abuse” limitation or its functional equivalent in or near 1868. The number was 40 of 45 in 1895, the number diminished by one with South Carolina’s deletion of the “abuse” provision in its 1868 Constitution. In 1912 the number was 43 of 48.

　　In focusing on 1868, to me, the most important consideration is whether states collectively included at least one of these two provisions. Incorporation of an “abuse” provision compellingly reflected the legal status of reputation as a fundamental common-law right, as evidenced by Justice Neil Gorsuch’s analysis of the common law quoted below. One may also reasonably conclude that an express constitutional recognition of a fundamental interest in reputation made an “abuse” qualification of press-speech redundant. Accordingly, if one adds to the “abuse” list those that expressly provided protection for reputation or character, the number became 38 of 38—in other words, state constitutions universally recognized common-law protections on or near 1868.

　　The 1876 state constitutional consensus reflected a powerful natural law-based protection of reputation that amplified and implemented more specifically the states’ universal constitutional protection of life, liberty, and property (including acquisition, possession, and protection thereof), and the pursuit/obtaining of happiness, ratifying the common law’s longstanding, powerful protection of reputation. Based on these statistics, I next took a new look at the well-known jousting match between the two leading opinions analyzing the common-law “fair comment” privilege. In his 1893 decision in Post Pub. Co. v. Hallam, Judge William Howard Taft unequivocally reaffirmed that “fair comment” only applied to comments based on true facts, following the generally adopted American and British rule. Judge Taft quoted extensively from an Ohio decision that year holding that any other approach would “drive reputable men from public positions and fill their places with others having no regard for their reputation.”

　　In the 1908 leading decision espousing the small minority rule, Coleman v. MacLennan, the Kansas Supreme Court blithely rejected both Hallam and the Kansas Constitution’s “abuse” and protection-of-reputation-or-character provisions, concluding that they could not be given “infinite signification and focus in all cases.” The court interpreted press protection expansively, stating that “the character, the organization, the needs, and the will of society at the present time must be given due consideration.” This extraordinarily expression-protective, living-constitution standard encompassed all “matters of public concern, public men, and candidates for office.”

　　MacLennan’s almost unfettered protection clearly appealed to Justice Brennan, as he incorporated its version of “fair comment” into Sullivan in a conscious attempt to bestow a common-law pedigree on his radical departure from both the common law and the Court’s precedents that had found untrue defamatory statements to have no First Amendment protection. But there’s an insurmountable problem with Justice Brennan’s reliance on MacLennan. He flagrantly misinterpreted and misapplied the much more constrained forfeiture standards incorporated therein. MacLennan unquestionably employed “actual malice” and good faith in the much broader context of the multiple means of common-law malice then prevailing in Kansas and elsewhere. Justices Goldberg and Douglas construed MacLennan as so concluding and expressed grave concern in Sullivan about its negative First Amendment implications.

　　Most shocking is Justice Brennan’s specific approval of and reliance on the Kansas trial court’s instructions that, in fact, refuted the Court’s negligence-is-never-enough construct underpinning Sullivan’s “actual malice” rule. Read as a whole, that instruction specifically limited “fair comment” to situations where “defendant made all reasonable effort to ascertain the facts before publishing.” The latter, if frankly acknowledged and applied, would have eviscerated the Court’s prophylactic rule with its unparalleled preemptive strike against all future media liability and would have required the Court to affirm the Alabama decision, as the Times had conceded its negligence in not reviewing its own files.

　　Our private and public discourse and the self-censorship induced by the awesome reputation-debilitating power of racism charges would be measurably changed for the better were the Court to return to the common law.

　　Unlike Angel Eduardo, I strongly agree with Carson Holloway and Mark Pulliam that both Sullivan’s “actual malice” rule and Justice Brennan parade before the public as “emperor[s] [who have] no clothes.” Indeed, Justice Elena Kagan is one of several academics who strongly criticize Justice Brennan for not relying on the more defensible alternatives under the common law—the absence of the “of and concerning” requirement, a substantial-truth defense, and Sullivan’s failure to prove damage to reputation. Justice Clarence Thomas has invited the Court to limit Sullivan to the alternative ground adopted: Sullivan’s attempt to base his defamation claim on “an impersonal attack on government operations.” As I’ve suggested, this revision would relegate the “actual malice” standard to “elegant, mellifluous, largely anti-historical dicta.” It would also undermine Justice Kagan’s surprising recent attempt to rehabilitate Sullivan’s provenance by adopting its subjective awareness threshold in the “true threats” context in Counterman v. Colorado. Like Holloway, I very much doubt that Sullivan has five defenders on the Court.

　　The illegitimacy of Sullivan’s “actual malice” standard alone provides a compelling case for overturning it and returning to the pre-1964 law. The Court as reformer should accept the challenge of Professor David Logan that Sullivan should be revisited: “Our democracy hangs in the balance,” a view given credence by Justice Gorsuch’s extensive citations to Professor Logan. I’ve delineated in detail how the “Rehnquist Era Court” Gertz-initiated counter-revolution attempted mightily to mitigate the carnage done by Sullivan and its early emanations. Yet, the manipulable, arbitrary, non-empirical criteria reformulated in Gertz—access to the means of rebuttal and assumed risk—provide media lawyers and lower courts extravagant opportunities to strictly limit victims’ opportunities for success.

　　This means that almost all of us become “vortex” public figures (I’m probably one based on this essay) when we become engaged in any public controversy under one of the many dubious categories devised by lower courts, as Justice Gorsuch has compellingly demonstrated in Berisha v. Lawson. By adopting Professor McGinnis’s “prospective overruling” proposal, the Court as reformer could explore the many malleable soft spots I and others—including participants in this forum—have identified and attempt to further leaven the playing field. I strongly doubt, however, that this incremental approach will provide the necessary retooling that American law and democracy require.

　　Professor McGinnis further suggests that Court abrogation of public-figure status while retaining Sullivan for public officials might be defensible under an originalism risk-benefit analysis. But leaving the “actual malice” mandate intact—together with its demanding independent appellate review and “lacks the convincing clarity”—“clear and convincing” evidence creative addenda—would continue to incentivize what I and other commentators view as the pollution of American public discourse. Professor Logan elegantly describes this anti-democratic phenomenon as “facilitating the miasma of misinformation that harms democracy by making it more difficult to become informed voters.” Yet, public officials—even limited to those “high public officials” Justice Gorsuch identifies in Berisha as likely envisioned by Sullivan—who seek redress would encounter what federal judge Robert S. Lasnick calls the “nuclear war” tactics employed against those who dare to complain—and will highly likely remain remediless. Professor McGinnis’s proffer would entail difficult line-drawing as to what government actors qualify as public officials and what defamatory matter is relevant to their public capacities, rather than their private lives. On this point, it should be emphasized how lower courts have flagrantly ignored the portentous suggestions in the Court’s jurisprudence that not all government employees qualify as public officials, and that a government security guard or file clerk/typist would not qualify as public officials and have uniformly held that all law-enforcement officers, even those at the lowest levels, are public officials and that almost anything they do is relevant to their fitness.

　　In assessing the continuing devastation wrought by Sullivan and progeny, it’s worth highlighting the deplorable fate of Chief Justice Rehnquist’s valiant attempt to “hold[] the balance true” in Milkovich v. Lorain Journal Co., in which the Court rejected the open-ended multiplicity-of-factors approach in determining what is protected “opinion” rather than non-protected “fact.” Post-Milkovich lower courts have effectively gutted it, with media lawyers baldly claiming victory. The “opinion” case-law “mess” that Judge Harry Edwards savaged decades ago continues to blossom as a largely impassable field of thorny thickets. As I have said, courts “continue to engage in Orwellian psychobabble and find nonactionable statements that the common person, common sense, and the common use of language would view as decidedly factual, refutable, defamatory, damning, and damaging.” This leaves the American public with bizarre, perverse, and unconscionable decisions like Sandmann v. New York Times Co., where a teenager confronted by an in-your-face Native American activist was denied a legal remedy when portrayed globally as a racist by media defendants’ adoption of the activist’s perception of the teenager’s intent wholly refuted by the facts.

　　Our private and public discourse and the self-censorship induced by the awesome reputation-debilitating power of racism charges would be measurably changed for the better were the Court to return to the common law and Hallam‘s “fair comment” doctrine, which would impose liability unless defendant justifies such charges by demonstrating that the facts underlying the comment are true. That would require the Court to overturn the anachronistic, pre-digital, 60-year-old Sullivan decision and its dominoing progeny and to concede they are, as I’ve found, “constructed on a house of cards atop a bed of constitutional quicksand.” The law might then return to the sanity envisioned by the Founders and described by Justice Gorsuch in Berisha: “Those exercising the freedom of the press had a responsibility to get the facts right or, like anyone else, answer in tort for the injuries they caused.” This is the common-law framework mirrored in the state constitutional provisions analyzed above that fostered a vibrant free-expression tradition prior to 1964.